Freer v. Mayer

• Decision Date: 29 January 1996
• Citation: 637 N.Y.S.2d 425,223 A.D.2d 667
• Parties: David FREER, Jr., etc., Appellant-Respondent, v. E. Hale MAYER, Respondent-Appellant, Thomas C. Aposporos, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 425

637 N.Y.S.2d 425

223 A.D.2d 667

David FREER, Jr., etc., Appellant-Respondent, v. E. Hale MAYER, Respondent-Appellant Thomas C. Aposporos, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Jan. 29, 1996.

Serchuk & Zelermyer, L.L.P., White Plains (Benjamin Zelermyer and Richard J. King, of counsel), for appellant-respondent.

Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh (Bernard J. Sommers and Stephen J. Gaba, of counsel), for respondent-appellant.

Cuddy & Feder, White Plains (Thomas R. Beirne and Ann Farrissey Carlson, of counsel), for respondents.

Before BALLETTA, J.P., and MILLER, O'BRIEN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In a shareholder's derivative action, the plaintiff appeals from so much of a judgment of the Supreme Court, Dutchess County (Jiudice, J.), dated May 2, 1994, as, upon granting the defendants' separate motions for summary judgment, is in favor of the defendants and against him dismissing the complaint, and the defendant E. Hale Mayer cross-appeals from so much of the same judgment as dismissed his cross-claim for indemnification.

ORDERED that the cross-appeal is dismissed as academic; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the respondents and the respondent-appellant are awarded one bill of costs.

The Supreme Court properly determined that it was not obligated by the doctrine of the law of the case to follow a determination of a Federal court which found that issues of fact existed as to the Federal causes of action and the State common law causes of action sounding in waste and breach of fiduciary duty that were interposed by the plaintiff against the defendant E. Hale Mayer. A subsequent decision by the same Federal court, upon the motion of all defendants except Mayer, dismissed all of the Federal causes of action based on new facts, and then dismissed the pendent State common law causes of action against all defendants except Mayer, for lack of any Federal question jurisdiction.

Since the issues relating to the causes of action based on Federal law were the same as to all defendants, the initial decision pertaining to the Federal law causes of action interposed against Mayer was inferentially reversed or vacated when the Federal court dismissed all Federal causes of action against the remaining defendants for lack of Federal question jurisdiction. Similarly, the decision not to exercise pendent jurisdiction over the State common law causes of action against the remaining defendants inferentially reversed or vacated the prior finding that issues of fact existed with respect to the State common law causes of action interposed against Mayer (see, e.g., Lund v. Chemical Bank, U.S. Dist. Ct., S.D.N.Y., Feb. 20, 1990, 1990 WL 17711, Sweet, J. [citing, e.g., Zichy v. City of Philadelphia, 590 F.2d 503, 508], reaffd. on reconsideration 760 F.Supp. 51; see also, Zangiacomi v. Hood, 193 A.D.2d 188, 190, 194, 603 N.Y.S.2d 31).

Moreover, the Supreme Court properly determined that absent evidence that the individual...